14 According to the recent decision of the Supreme Court of the United States, in the case of Seaboard Air Line Ry. v. Horton, 34 Sup. Ct. Rep. 635, precisely this result follows from the construction which the court of last resort gives to the fourth section of the act. The maladroit phraseology of the fourth section under the decision in this case renders the act not only brutum fulmen, but also the effective means of nullifying the liberal reforms which have been successfully accomplished by the independent action of the several states in dealing with the question of the liability of railroads to their employes. As we have shown, many of the states of the Union long ago consigned the doctrine of assumption of the risk of the master's negligence to the limbo of things, fantastic at best, that have survived their raison d'etre, and, in their survival, serve only to encumber the ground. The value and importance of the agency of the states in this reform has not been without due recognition by the Supreme Court of the United States itself. In the Mondou Case, Mr. Justice Van Devanter, in delivering the opinion of the court, took occasion to say: "We are not unmindful that that end was being measurably attained (prevention of negligent acts and omissions by the railroads in the interest of safety of employes and the advancement of commerce) through the remedial legislation of the several states, but that legislation has been far from uniform, and it undoubtedly rested with Congress to determine whether a national law, operating uniformly in all states upon carriers by railroads engaged in interstate commerce, would better subserve the needs of that commerce." We are, accordingly, by the decision in the Horton Case, brought face to face with a remarkable anomaly: we find in the act proposed with the most earnest encomiums as the final decree of emancipation from (14) 233 U. S. 492, 34 Sup. Ct. Rep. 635. the obsolete and unjust restraints of the common law, the same persistent and indomitable principle which has been one of the chief features of its hardship; and learn that section four of the act, instead of enhancing the liability of the master as it existed at common law by restricting his choice of agencies, really operates to restrict his liability, as declared by the first section of the act, by preserving to him the all-sufficient defense of the servant's assumption of the risk, except in cases arising from the violation by the master of a "statute enacted for the safety of employes." If the Horton Case shall stand as a final interpretation of the act of 1908, far better it were for the nation that the bill had been burked, and never reported out of committee, with its specious, but illusive, prospect of relief; that it had been left to the several states to complete the effort so auspiciously begun by them, and, unfettered by the good offices of Congress, to work out their own ultimate salvation. In the Horton Case, it is held that section four, of the act of Congress, upon the principle expressio unius alterius est exclusio, infers that the doctrine of the assumed risk, may still be vouched as a defense to an action brought under its provisions to recover damages for injuries resulting from the master's negligence. 15 A reasonable construction of this provision would seem to conduct one inevitably to the opposite conclusion. To the unsophisticated mind, the evident intendment of this section-with due regard to the maxim ut res valeat magis quam pereat, no less cogent than the former precept of the law in this instance-would seem to have been only to make manda (15) "It seems to us that §4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action." (Mr. Justice Pitney in the opinion of the court in S. A. L. v. Horton, p. 639). he had, nevertheless, in lieu of them, made use of such other appliances as were equally to the purpose, and as, at all events, were in reasonable conformity to the standard of ordinary care, of which, according to some of the authorities, "the unbending test" is the usage and custom of other employers in similar situations. The conclusion of the court in the Horton Case is not founded upon any express tory upon the master the absolute observance of the specific requirements of the Safety Appliance Acts, and to deprive him of the right which he might exercise at common law, simply to use ordinary care to provide reasonably safe appliances, etc. In the absence of the express provision of section 4, of the act of 1908, and of the specific provisions of section 8, of the Safety Appliance Act itself (27 Stat. at L. 591, chap. 196), it might have been plaus-provision of the act. By its first section, ibly contended that, although a violation by the master of a "statute enacted for the safety of employes," would, of course, subject the master to the penalty denounced against his delinquency by such a statute, yet the nonobservance by him of the requirements of such statute would in no case ipso facto, or necessarily, infer his liability to the servant for injury consequent upon the master's default in the particular in question.16 The considerations by which this question is to be determined are stated in 26 Cyc. 1180, as follows: "There is some conflict of authority as to whether a master may avail himself of the defense of assumption of risk where the injury complained of resulted from the neglect of a duty imposed by statute. Where the defense is forbidden by the statute itself, he cannot, of course, rely upon it; and where there is no such inhibition, the weight of authority seems to be to the same effect, although there are decisions which maintain a contrary doctrine. If the object of the statute is other than the protection of the servant, the master's neglect of the duty imposed will not prevent his relying on the servant's assumption of risk." The master might still in every case of delinquency on his part have recourse to a defense predicated upon the exercise of ordinary care. He might still, for example, sucessfully claim that although the specific devices prescribed by the Safety Appliance Acts had not been used by him, (16) Hortenstein v. Virginia, etc., R. Co., 102 Va. 914, Beyel v. Railroad Co., W. Va., 12 S. E. 532. the liability of the carrier to the employe is in terms declared absolute in all cases of negligence or default resulting in personal injury to the servant. It abolishes, as the court emphatically holds," the doctrine of the fellow servant, and yet, in the light of this untoward decision, curiously enough, revives the doctrine of the assumption of the risk, although both the doctrine of the assumption of the risk and the doctrine of the fellow servant, according to some of the authorites, stand on a footing, and depend, the one upon the servant's implied engagement to abide the chance of his fellow servant's carelessness, and the other upon his implied engagement to undertake the burden of his master's negligence, if he continues in the employment with knowledge of his master's fault. The result reached by the court, it derives as an implication based, we believe, upon a misconception of an act which is in pari materia, so to speak, with other legislation by Congress embraced in the Safety Appliance Act and its congeners of the statute book. The basis of the decision is a mistaken application of the maxim expressio unius, etc., in an interpretation which confounds the phrase, "risks of his employment," with the phrase, “assumption of the risk," in the sense in which it is commonly accepted. The latter phrase, signifying as it does primarily the natural hazards incident to the employment, and, secondarily, the abnormal perils arising from the master's negligence, the act no (17) 34 Sup. Ct. 639. where makes use of. The intention of the words "risks of his employment" does not comprehend these abnormal and extraordinary dangers, but rather the usual or normal dangers to which the servant's employment is intrinsically subject. In the context of section 4, of the act, they serve, it would seem, only to deprive the master of the plea of ordinary care in any instance of the violation by him of a "statute enacted for the safety of employes," upon the theory, for example, that the appliance in question, although other than the specific appliance required by a federal "statute enacted for the safety of employes," was, nevertheless, reasonably safe and efficient, and that, consequently, the element of danger attending its use was, upon common law principles, no more than a normal and ordinary hazard of the business; that is to say, an original "risk of the employment." We are confirmed in this construction of the act by another consideration extraneous to the act itself. It is difficult to see how or whence the doctrine of assumption of the risk can be imported into the statute. If, as we have already seen, the act cannot be pieced out or supplemented by the legislation of the state, it constitutes a unity within itself, creating arbitrarily by the legislative fiat, a right of action where none before existed under the Federal Constitution. Moreover, there is no common law of the United States. Gattin v. Chicago." The common law is not recognized by the Federal Constitution, nor has it been adopted by any act of Congress, were Congress empowered in the absence of express constitutional warrant to adopt it as the law of the United States. The proposal in the beginning that the courts to be erected under the Federal Constitution, should be vested with orig inal common law jurisdiction, was bitterly resented, and passionately resisted.1o The common law of England is the law of the states in which it prevails only by reason of some express legislative act or constitutional sanction. The federal courts assuming to enforce it within their jurisdiction administer it not as the common law of the United States existing independently of the authority of the several states, but as the law of the states by which it has been expressly adopted. That the courts of the United States, in the application of its principles, assert the right to give these principles as a body of general law an interpretation consonant with their own proper precedents rather than with the precedents of the several states themselves, in no wise derogates from the force of this proposition, or in any respect alters the case. Considering the circumstances, as we have unfolded them, attending the origin of the act of 1908, it is incredible that Congress in this measure while expressly abolishing contributory negligence as a bar to recovery, should have deliberately preserved the assumption of the risk of the master's negligence as a defense to the servant's action for injuries resulting, in whole or in part, from the master's default. It is more difficult to understand how, if such were the fact, the terms of the act will bear such construction; and still more difficult it is to perceive by what authority the most absurd dogma of the common law can be translated into a statute of the United States, whose courts have no concern with the common law, except as an emanation from the several states themselves in more or less qualified form. Yet, until the Horton Case is overruled, or the act itself amended, the assumption of the risk will prove to be an important, and, perhaps, a decisive factor in every case arising under its provisions. The distinction between the assumption of (19) Va. Debates & Report, 1798-99, 214-15; Duponceau, Jur., p. 225. the risk and contributory negligence, hazy and obscure, at best, is too subtle, too nearly counterfeit, to permit us to hope that the two principles can in practice be discriminated. In the sequel, the carrier, dislodged from its entrenchment behind the doctrine of contributory negligence, in good order and with colors flying, will have only to fall back to a position more formidable still within its secondary line of defense behind the doctrine of assumption of the risk; "For noise never frightens a soldier." The decision of the Supreme Court in the Horton Case is, we think, based upon a partial and ill-considered view of the act. It is, nevertheless, the law until the court itself shall recall the judgment which it has delivered. Except as the act of 1908 bearing the construction which the court has given to it in this case, shall exert its paralyzing influence upon the initiative of the states in their effort to redress the injustice of the common law, the act by this decision is rendered nugatory. Tested by this decision, it is merely "a sounding brass and tinkling cymbal," the mockery of whose delusive promise of relief must needs prove a bitter disappointment to those who had confidently looked to the act as the augury of a new era in the industrial situation. To the thousands of humble toilers whose welfare it touches so nearly, it has become as poor a boon as was the feast of Barmecide to Shacabac, the beggar. Until the decision in the Horton Case was announced, on April 27, 1914, the act of 1908 might have been regarded as a finished piece of constructive statesmanship, harmonious in all its parts and in keeping with the correlated statutes of the United States dealing with the liability of interstate carriers to their employes. Section 4, of the act, might reasonably have been taken to constitute the tie unifying the provisions of the act and bringing it into logical relation with the other acts of Congress enacted for the safety of em ployes. By giving effect to section 4, of the act, however, not as a part of a general scheme of legislation, but rather as the phraseology of some isolated enactment, the court has rendered the act incongruous in all its provisions and impossible of econcilement with the kindred acts of Congress. In spite of the assurance of Mr. Justice Lurton, in the Vreeland Case,20 that it is not to be "pieced out" by the legislation of the states, it is, nevertheless. become like the false king in the play, a thing of "shreds and patches," to be aided and supplemented by the common law of England, a body of jurisprudence which has no existence as the law of the United States, which can exist in the several states themselves, only in virtue of some legislative enactment or constitutional ordinance expressly adopting it as the law of the state, and which, in more than one of the states of the Union, has been duly repealed, so far as the assumption by the servant of the risk of the master's negligence is concerned. The fourth section of the act in question is as follows: "That, in any action brought against any common carrier, under or by virtue of any of the provisions of this act, to recover damages for injuries to, or the death of, any of its employes, such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe." In the apparently inoffensive language of this clause, according to the decision of the court in the Horton Case, lurks the joker in the act, a patient, though freakish, sprite, disowned by the common sense of mankind, but whom, nevertheless, the courts have long ago received into their protection, and cherished with true paternal pride as the most loyal of their servitors, the familiar and irrepressible doctrine of assumption of the risk.* MARSHALL R. PETERSON. Lawrenceville, Va. Crocker, (de Note*-In Southern R. Co. v. cided June 22, 1914) 34 Sup. Ct. Rep. 897, the Supreme Court of the United States refers with approval, although without discussion, to S. A. L. Ry. v. Horton, which is the subject of review in the foregoing article. It is the author's hope that the crucial question of the relation of the doctrine of assumption of the risk to the act of April 22, 1908, will in some future adjudication by that tribunal receive a than is accorded by the opinion in the Horton case. The Author. May 23, 1907, wherein the present legatee was the petitioner for probate and the active instigator of a plan and scheme to secure the entire estate for herself. The memoranda and findings of fact wherein probate was denied are contained in the record on appeal, all of which I am compelled to consider in review on this application. The testator, at the time of the execution of his will, considered the natural objects of his bounty and made provision for this petitioner, to whom he had been married, and separated for more than 10 years, and, despite the es trangement, bequeathed to her $5,000. more thorough consideration While the courts are indulgent and generous in interpreting a clause in a will forfeiting a bequest in case of a contest by the legatee, the attempt of a legatee of full age to prove a false and spurious document, purporting to be a will subsequent to the testator's true will, was equivalent to a "contest" within a provision of the true will that if any person should controvert or call in question the validity of the will, the interest, legacy, or bequest of such person should pass under the residuary clause, and hence the legatee was entitled to no portion of the estate. HART, S. The petitioner, Florine A. Kirkholder, has made application for the payment of a legacy contained in the will of William H. Kirkholder, executed on the 17th day of May, 1907. The claim is resisted by the executors, who rely upon the validity of clause ninth of the instrument: "Ninth. I further will and direct that if any person named in this will shall in any manner controvert, dispute or call in question the validity of this will, then and in such case the interest, legacy or bequest of such person so disputing this will or calling in question the validity thereof, shall be added to and pass as a part of and under the residuary clause of this will to such person or persons as shall be entitled thereunder and thereto." The will containing the above provision was admitted to probate in this court August 19, 1908, at the conclusion of a most remarkable endeavor to prove an alleged will, bearing date The restrictive forfeiture clause, above quoted, is broad in its terms, and would indicate that the testator had exercised extraordinary care and solicitude in extending its scope to embrace every possible contingency. The general statement that "the law relating to conditions in wills imposing forfeiture of benefits thereunder on those contesting the will is in a state of confusion in England and America" (Reed on Wills, § 15), is confirmed on examining the decisions of New York and other states. In certain cases the courts have held such provisions not effective to defeat the gift to one contesting the will because there was no gift over to any one else on the violation of the provision, which is therefore to be treated as merely in terrorem. The provision has been held invalid as to realty, and a contest made by a special guardian has not prevented the infant from receiving a bequest, the minor not being held responsible for the act. The forfeiture clause has been held invalid when it clearly appears that the contest was justifiable, and not the mere vexatious act of a disappointed beneficiary. The validity of the forfeiture clause is held valid in the state of Ohio. Bradford v. Bradford, 19 Ohio 546, 2 Am. Rep. 419. The following doctrine is enunciated in 2 Williams on Executors, p. 1147: "When there is a devise over, in case of a violation of the provision, to some person named, or that the share thus limited shall fall into the residuary estate for distribution, the share will pass to the intended devisee or to the estate upon the breach of the conditions." The legatees under the will of Barandon, 41 Misc. Rep. 380, 84 N. Y. Supp. 937, were active contestants, and elected to forfeit any claim under the will, and the court held: "Though conditions whereby legacies are defeated by contesting the validity of the will in which they are contained are not favored and are strictly construed, they are valid." |